specially concurring.
In his specially concurring opinion (in which I join), Justice Raper has pointed out the inappropriate application to this matter of every case cited by the majority in their opinion. Among other things, he has indicated (1) the failure of the majority opinion to recognize the plain words used by the legislature, (2) to distinguish between those words and “insanity,” and (3) the potential injury to both the defendant and the public which will arise from failure to afford court-ordered examination of those offering an “unconscious” defense under a plea of not guilty.
In this separate special concurrence, I want to emphasize a dangerous result of the majority opinion: the probable inclusion of the defense of “unconsciousness” on almost every plea of “not guilty.” I believe we are regressing to the situation reflected in the quotation set forth in Justice Raper’s opinion from Jessner v. State, 202 Wis. 184, 231 N.W. 634, 71 A.L.R. 1005 (1930), concerning the situation which existed before mandatory court ordered examinations were required of those who based their defense on absence of mental responsibility:
“The assault thus made upon this statute is highly important. Its enactment was in response to a well-settled conviction that, in criminal cases at least, where the interests of society were involved, there should be some technical evidence from unprejudiced and reliable sources. This conviction grew out of the belief that under the then existing procedure there was a striking tendency on the part of experts to accommodate their opinions to the necessities of that side of the case upon which they were testifying, and that such opinions were to a very large extent prejudicial and unreliable. To secure the reliable and unprejudiced opinions of the ablest experts in such cases, to the end that the purest degree of justice might be promoted, the board of circuit judges sponsored the enactment of this statute. If this statute must be condemned as unconstitutional, it will require retracement of most significant forward steps in judicial procedure, and bring regret to all who believe in steady progress towards the attainment of a more perfect justice.”